200-year-old compromises empower those seeking to dismantle abortion rights

According to a leaked Supreme Court majority opinion, American women are about to lose the right to decide whether and when to begin a family; a constitutional protection they’ve had for nearly 50 years.

How is this possible? What’s changed since Roe v. Wade was initially decided?

Not an increase in abortions; in fact, they’ve now fallen to less than half of what they were in the early 1980s.

Not public opinion, which has remained remarkably consistent. Indeed, in a Pew survey released earlier this month, 61% said abortion should be legal in all or most cases.

What’s changed is the makeup of the Supreme Court, which now has six justices broadly hostile to abortion rights.

But isn’t the court supposed to follow precedent and the principle of stare decisis, which holds that settled law should remain in place absent a compelling reason to overturn it? Perhaps even more important in the minds of regular citizens, what about democracy?

Doesn’t killing Roe fly in the face of majority rule?

Yes and yes.

But the reason Roe appears destined to fall anyway lies in America’s ancient past – and more specifically, in the 200year-old compromises that were necessary to persuade Southern slave states to ratify the Constitution and join the union.

Contrary to conventional wisdom, neither the Electoral College nor the two-senators-per-state artifacts resulted from a split between big states and small states.

In the late 1700s and early 1800s, the split was between North and South.

And because Southern states had far more slaves than slave owners, they feared being perpetually outvoted at a time when only white men who owned property could cast ballots.

Enter three major compromises: (a) counting slaves as three-fifths of a person, (b) giving every state an equal number of Senate seats regardless of population, and (c) choosing presidents through an “Electoral College” rather than by popular vote.

Together, these anti-democratic compromises are a large part of why today’s Supreme Court can ignore public opinion and strip half the population of a constitutional right they’ve relied upon for nearly half a century.

Of the five justices likely to overturn Roe, four were appointed by presidents who lost the popular vote – but won the office via the Electoral College.

And they were confirmed by an unrepresentative Senate in which the 44 million Americans who live in California get two senators, while the 1.6 million people who live in the Dakotas get four.

And because highly conservative minorities are now in the driver’s seat, returning the issue of abortion to the states promises to unleash a tsunami of extremism.

At least 10 states are poised to enact abortion bans with no exceptions for rape and incest.

At best, reversing Roe will result in a bewildering patchwork of conflicting state laws that make women’s rights wholly dependent on where they live.

At worst – and despite Justice Sam Alito’s assurances to the contrary – the logic behind his majority opinion will pave the way for a wholesale assault on other important constitutional rights.

Alito’s main argument is that the right to an abortion is neither “enumerated” in the text of the Constitution nor “deeply rooted in this nation’s history and tradition.”

But that is equally true of same-sex marriage, contraception, interracial marriage and even the right to privacy itself – all of which could find themselves on the chopping block as a result.

If you think we hate each other now, wait until Roe is overturned.

Archaic compromises reached two centuries ago have enabled not just the evisceration of majority rule, but a budding tyranny of the minority.

I doubt it’s sustainable. At some point, there will be a revolt. Maybe even an explosion.

Dale Butland was press secretary and Ohio chief of staff to the late Sen. John Glenn.